THE MODERN DEMOCRACY 
THE CITIZEN 



AND 



THE LAW 



BY 

JOHN B. WINSLOW, A.B., LLB. 

JUSTICE, SUPREME COURT OF WISCONSIN 




BLACKSTONE INSTITUTE 
CHICAGO 



CorvHiGHT, 1!I14 

BY THE 
lil-ACKSTONE InSTITITK, 



CI,A361712 






REPRINT FROM 



Modern American Law 



A Systematic and Comprehensive Commentary on the 
Fundamental Principles of American Law and Pro- 
cedure, Accompanied by Leading Illustrative 
Cases and Legal Forms, with a Revised 
Edition of Blackstone's Commentaries 

PREPARED BY 

JUDGES, MEMBEES OF THE BAE, TEACHEES IN LAW SCHOOLS, 
AND WEITEES ON LEGAL SUBJECTS 



UNDER THE EDITORIAL SUPERVISION OF 

EUGENE ALLEN GILMORE, A. B., LL. B. 

PROFESSOR OF LAW, UNIVERSITY OF WISCONSIN 
ASSISTED BY 

WILLIAM CHAELES WERMUTH, M. S., LL. B. 

LAW LECTURER, NORTHWESTERN UNIVERSITY 



FIFTEEN VOLUMES 



BLACKSTONE INSTITUTE 
CHICAGO 



JAN 23 ! 9 14 



dern American Law 



SUBJECTS AND AUTHORS 

VOLUME I. 

General Introduction Eugene A. Gilmore, A.B., LL.B., 

University of Wisconsin. 
The Modern Democracy, the Citizen 

and the Law John B. Winslow, A.B., LL.B., 

Supreme Court, Wisconsin. 
Legal Ethics Orrin N. Carter, LL.D., 

Supreme Court, Illinois. 
Law — Its Origin, Nature and Devel- 
opment Charles A. Huston, A.B., J.D., J.S.D., 

Leland Stanford Jr. University. 
Courts — Federal and State Arthur L. Sanborn, LL.B., 

United States District Court. 
Contracts William C. Wermuth, M.S., LL.B., 

Northwestern University. 

Torts: VOLUME II. 

Introduction — Trespass William C. Jones, A.B., M.A., 

University of California. 
Conversion Frank L. Simpson, A.B., LL.B., 

Boston University. 
Negligence and Legal Cause .... Barry Gilbert, A.B., LL.B., 

State University of Iowa. 
Deceit Edward D. Osborn, 

University of Kansas. 
Defamation Charles M. Hepburn, A.B., LL.D., 

Indiana University, 
Malicious Prosecution John C. Townes, LL.D., 

University of Texas. 
Domestic and Business Eelations. William C. Jones, A.B., M.A., 

University of California. 
Eight of Privacy William C. Jones, A.B., M.A., 

University of California. 
Miscellaneous — Explosives, Etc.. George F. Wells, LL.D., 

University of West Virginia. 
Fellow Servant Doctrine Theophilus J. Moll, Ph.B., LL.B., 

American Central Law School. 

V 



vi SUBJECTS AND AUTHORS 

VOLUME III. 

Criminal Law William E. Mikell, B.S., 

University of Fennsylvania. 

Criminal Procedure William L. Burdick, Ph.D., LL.B., 

University of Kansas. 

Persons and Domestic Eelations Elmer M. Liessmann, LL.B., 

Northwestern University. 

VOLUME rv. 

Personal Property and Bailments. .. .Henry W. Ballantine, A.B., LL.B., 

University of Wisconsin. 
Liens and Pledges E. L. Henry, Jr., Ph.B., J.D., B.C.L., 

University of North Dalota. 
Agency William A. Ferguson, A.M., LL.B., 

Fordham University. 
Sales H. Claude Horack, Ph.B., LL.B., 

State University of loiva. 

VOLUME V. 

Real Property - .Arthur W. Blakemore, A.B., LL.B., 

Of the Boston Bar. 

VOLUME VI. 

Descent — Wills — Administration — 

Guardian and Ward Charles S. Cutting, LL.D., 

Of the Chicago Bar. 
Landlord and Tenant William L. Burdick, Ph.D., LL.B., 

University of Kansas. 
Water Rights and Irrigation James W. McCreery, 

University of Colorado. 
Mines and Mining William E. Colby, LL.B., 

University of California. 

VOLUME VII. 

Equity John N. Pomeroy, A.M., LL.B., 

University of Illinois. 
Trusts George G. Bogert, A.B., LL.B., 

Cornell University. 
Quasi-Contracts xVrthur M. Cathcart, A.B., 

Leland Stanford Jr. University. 
Estoppel Oliver S. Rundell, LL.B., 

Of the Wisconsin Bar. 

VOLUME MIL 

Negotiable Instruments .William G. Hale, B.S., LL.B., 

University of Illinois. 

Guaranty and Suretyship ..Charles E. Carpenter, A.M., LL.B., 

University of North Dakota. 



SUBJECTS AND AUTHORS vii 

Mortgages — Eeal and Chattel Manley O. Hudson, A.M., LL.B., 

University of Missouri. 

Statutory Interpretation John E. Kood, LL.B., 

University of Michigan. 

VOLUME IX. 

Private Corporations I. Maurice Wormser, A.B., LL.B., 

Fordham University. 
Partnership Eugene A. Gilmore, A.B., LL.B., 

University of Wisconsin. 
Banks and Trust Companies James L. Hopkins, LL.B., 

Of the St. Louis Bar. 
Eeeeivers Theophilus J. Moll, Ph.B., LL.B., 

American Central Law School, 

VOLUME X. 

Pleadings in Civil Actions Louis B. Ewbank, LL.B., 

Indiana Law School. 
Practice in Civil Actions William N. Gemmill, LL.B., LL.D., 

Municipal Court of Chicago. 
Equity Pleading and Practice "William E. Higgins, B.S., LL.B., 

University of Kansas. 
Evidence John T. Loughran, LL.B., 

Fordham University. 
Attachments and Garnishments Oliver A. Harker, A.M., LL.D., 

University of Illinois. 
Judgments and Executions John E. Eood, LL.B., 

University of Michigan. 
Extraordinary Eemedies Harvey N. Shepard, A.B., 

Boston University. 
Habeas Corpus John Wurts, M.A., LL.B., M.L., 

Yale University. 

VOLUME XI. 
Constitutional Law: 

Definitions and Principles James W. Garner, B.S., Ph.D., 

University of Illinois. 
Organization and Powers of the 

United States Government. .. .James Wilford Garner, B.S., Ph.D., 

University of Illinois. 
Constitutional Guaranties of 

Fundamental Eights Emlin MeClain, A.M., LL.B., LL.D., 

Leland Stanford Jr. University. 
Eminent Domain Philip Nichols, A.B., LL.B., 

Of the Boston Bar. 
Taxation f. .Philip Nichols, A.B., LL.B., 

Of the Boston Bar. 
Naturalization George F. Tucker, A.B., Ph.D., LL.B., 

Of the Boston Bar. 



VIU 



SUBJECTS AND AUTHORS 



VOLUME XII. 



Conflict of La^TS George L. Clark, A.B., LL.B., J.S.D., 

University of Missouri. 
International Law Paul S. Keinsch, A.B., Ph.D., LL.B., 

University of Wisconsin. 
Interstate Commerce Dudley O. McGovney, A.M., LL.B., 

Tulane University. 
Bankruptcy George Lawyer, A.M., LL.B., 

Albany Law School. 
Patents George C. Holt, A.B., LL.B., LL.D., 

United States District Court. 
Copyrights William L, Symons, LL.M., M.P.L., 

Washington College of Law. 
Trademarks William L. Symons, LL.M., M.P.L., 

Washington College of Law. 
Unfair Competition and Good Will. .James L. Hopkins, LL.B., 

Of the St. Louis Bar. 

VOLUME XIII. 

Public Service Companies — Carriers. .Bruce Wyman, A.M., LL.B., 

Harvard University. 
Municipal Corporations Henry H. Ingersoll, M.A., LL.D., 

University of Tennessee. 
Public Officers and Elections Edwin Maxey, D.C.L., LL.D., 

University of Nehrasla. 
Parliamentary Law John H. Perry, M.A., LL.B., 

Tale University. 

VOLUME XIV. 

Damages William P. Rogers, A.B., LL.D., 

Cincinnati Law School. 
Insurance Henry W. Humble, A.M., LL.B., 

University of Kansas. 
Admiralty Law and Practice George C. Holt, A.B., LL.B., LL.D.. 

United States District Court. 
Medical Jurisprudence George P. Wells, LL.D., 

University of West Virginia. 
Forms Francis L. Harwood, A.B., LL.B., 

Of the Chicago Bar. 

VOLUME XV. 

Blackstone Henry W. Ballantine, A.B., LL.B., 

University of Wisconsin. 

Cumulative Index Frederick W. Schenk, 

University of Chicago. 



GENERAL INTRODUCTION. 

Modern American Law is a general, systematic and 
comprehensive commentary on the fundamental prin- 
ciples of American law and practice. 

The commentaries of Sir William Blackstone on 
the laws of England and of Chancellor James Kent 
on American law demonstrate the feasibility and 
value of presenting, within comparatively narrow 
limits, the principles of the law. The works of legal 
writers of a previous century, however, do not ade- 
quately expound the law of the present day. The 
rapid increase of legislation, the enactment of con- 
stitutional amendments, and the necessity of apply- 
ing the principles of law to new problems clearly 
indicate the need of a modern commentar}^ 

Modern American Law is the work of judges, 
teachers in law schools and writers on legal subjects. 
That the work is the combined effort of many minds 
and not of one, is a source of unusual strength and 
advantage. The authors present not only the modern 
rules of law, but, as well, the origin, nature and 
growth of the law. 

The entire field of la^w is systematically covered. 
The foundational or the basic subjects are treated 
first, and, following them in related groups, are the 



GENERAL INTRODUCTION 

derivative subjects. The work thus provides a 
logical and systematic course of reading in law. 

Each volume contains: first, treatises dealing 
with the several branches of the law ; second, leading 
illustrative cases taken from the federal, state and 
English reports, elaborating and explaining the 
treatises; third, quiz questions and problems, based 
upon the treatises ; fourth, bibliographies ; and fifth, 
a comprehensive index of the volume. In the four- 
teenth volume are included standard legal forms. 
The fifteenth volume is devoted to a modern edition 
of Blackstone 's Commentaries and a table of all cases 
cited throughout the volumes together with a cumula- 
tive index. It is possible by means of the index and 
the table of cases to find the discussion of any par- 
ticular principles as applied to all branches of 
the law. 

Modern American Law is offered to the reader 
with the confident belief that it will prove to be a 
standard legal commentary, useful alike as a work of 
general reading and of reference. 

Eugene A. Gilmoee, 
University of Wisconsin. 

W. C. Wermuth, 

Northwestern University. 



THE MODEEN 

DEMOCRACY, THE 

CITIZEN AND THE LAW 

BY 

JOHN B. WINSLOW, LL.D.* 

If we take account of time by the majestic marcli 
of the centuries rather than by the feverish flight of 
the seasons, and measure progress by great world 
movements, rather than by the petty events of this 
or that community, we shall find that it is no very 
long time since the law was generally regarded as 
a mysterious, if not an occult, science, entirely beyond 
the grasp of the ordinary citizen. 

Its decrees were accepted and obeyed not because 
they were based upon reason, but because they eman- 
ated from a power capable of enforcing them. When 
told that some grievous and palpably unjust result 
must be endured because the law said so, the citizen 
was, perforce, content, or at least resigned to his fate, 
wondering, perhaps, why it must be so, — but hardly 
venturing to think that law could ever be made logical 
and just, as well as inexorable. 

In the days of absolutism this attitude of the citi- 

* Chief Justice of the Supreme Court of Wisconsin ; former President, 
American Institute of Criminal Law and Criminology. Author: "History 
of Supreme Court of Wisconsin"; "Legal Forms." 

I-l 1 



2 THE MODERN DEMOCRACY 

zen towards the law was natural and almost inevit- 
able. The liege-subjects of a feudal sovereign had a 
valid excuse for not familiarizing themselves with 
the fundamental law of the state ; they did not make 
the law and could not change it, however wrong it 
might be. The citizens of a democracy, however, 
have no such excuse ; they are the lawmakers, and it 
is their duty no less than their privilege to change 
the law if it be wrong. 

The future historian will find many things of sur- 
passing interest when he comes to review the open- 
ing decades of the twentieth century, but he will find 
nothing more interesting or significant than the great 
wave of democracy which is now sweeping over the 
earth. It is not that this will be the only great and 
significant movement of the present day which he will 
find it necessary to review, for there will be many 
others. Among these will be the wonderful increase 
of education among the masses of the people. 
Brougham said nearly a century ago that the school- 
master was abroad ; but, where there was one school- 
master abroad at that time there are a hundred now. 
He is not always educating wisely, perhaps; his 
courses may be superficial and fragmentary, and his 
abilities meagre, but whatever be the faults or defi- 
ciencies of his system, he is imparting to his pupils 
something in the way of knowledge, either utilitarian 
or abstract, and for the first time in the history of the 
world the great mass of the people are receiving 
some sort of education. It can hardly be doubted that 
before the lapse of many years practically every citi- 
zen of the so-called civilized nations, whether male or 



THE MODERN DEMOCRACY 3 

female, black or white, will not only be able to read 
and write, but will have such general knowledge on 
subjects connected with his occupation or the general 
welfare, or both, that he will be able to discuss and 
take a more or less intelligent part in the social and 
political movements of the time. 

Again, the future historian will be compelled to 
note the great industrial revolution now approaching 
its culmination, the astounding growth of the city 
at the expense of the country, the change from the 
individual to the community life, the vast increase in 
creature comforts, and the evolution of the means of 
communication and travel on a scale never before 
dreamed of. All these he will see, and more, and yet 
the great fact which will overshadow them all will 
be the fact that at this time the people of every na- 
tion first began to realize the fact that democracy may 
well mean something more than the right of certain 
classes of citizens to vote at stated intervals for rep- 
resentatives who may or who may not carry out the 
will of those who elect them. This remarkable world 
movement must be apparent to the most superficial 
present day observer of the signs of the times. Let 
any such observer take the world's map and put his 
finger where he will, he will find some phase of it. 
In Great Britain it takes the form of nullifying the 
powers of the House of Lords and curbing privilege 
of birth; in France and Germany it appears in the 
garb of socialism ; in China a republic supplants the 
rule of the Manchu dynasty, and in other countries 
it appears in various movements all directed with 
greater or less wisdom to the wiping out of one form 

3 



4 THE MODERN DEMOCRACY 

or another of privilege. Ever^-wliere there is political 
imrest; everyrs'here there is clamor for more direct 
and complete control of the government by the peo- 
ple. In our o^\'n country the democratic drift is, per- 
haps, more marked than an^-where else. We have 
long thought that we, in fact, had a democracy, or, 
perha^DS more exactly, a group of democracies united 
for self -protection and mutual benefit here on this 
side of the Atlantic. As a matter of fact there is 
much in our state and national governments that is 
not strictly democratic. But, unless every sign fails, 
we shall have democracies here before many years 
such as the world has never seen on any such scale 
before; at least we shall exi^eriment with them. 

The democracies which we have had are represent- 
ative democracies founded on the principle of pre- 
serving to the greatest possible extent the rights of 
the individual. The democracies which are coming, 
unless all signs fail, are democracies of direct popular 
action in which individual rights and privileges must 
give way in very many and very important particu- 
lars to regulations and restrictions deemed necessary 
for the benefit of the great mass of the people. 

The democracies of the present enact their laws 
by representative bodies chosen from the electorate, 
and delegate many governmental powers to officials 
or bodies of officials removed by many steps from the 
direct control of the people. The democracies which 
are coming propose to place both legislative and exec- 
utive power directly in the hands of the people, or 
under their immediate control, so far as that may be 
possible. The democracies of the past have limited 

4 



THE MODEEN DEMOCRACY 5 

the electorate to male citizens, the democracies which 
are coming will, without doubt, welcome to the elec- 
torate female citizens on equal terms, not as privi- 
lege, but as right. 

The direct prunarv, the initiative and ref erendmn, 
the recall, the equal suffrage movement, the election 
of United States senators by popular vote, the presi- 
dential preference primary, — all these movements, 
whether yet crystallized into law or only agitated, are 
simply manifestations of the overwhelming demo- 
cratic spirit of the time. Some of them may prove 
to be mere experiments which will be abandoned after 
trial, but some either have come or will come to stay, 
and, unless all signs fail, other changes which will 
tend to bring the administration of governmental af- 
fairs more quickly and completely within the control 
of the electorate will, at no distant day, be added to 
them, and ultimately be incor^^orated in our state 
and national governments. 

The wisdom of the innovations which are coming, 
or are already here, is not germane to the purpose 
of this article. It is sufficient to say here that there 
seems no doubt that they are coming, that they will 
be tried out, that some of them will be permanent, 
that they will work important changes in our social, 
as well as our governmental life ; changes which every 
citizen ought to seriously consider. 

The most serious thought which must present it- 
self to the mind when these great movements for more 
direct and speedy control of governmental affairs 
are considered, is the thought of the vastly increased 
responsibility of the citizen. A benevolent despotism 



6 THE MODERN DEMOCRACY 

may, perhaps, rule wisely and well, although its sub- 
jects are generally ignorant and have no high ideals, 
but it is very certain that the only foundation upon 
which a democracy can safely rest is the intelligence 
and virtue of the people. If this be true of a repre- 
sentative democracy, where legislative and other gov- 
ernmental activities are carried on by representatives 
with only an occasional appeal to the people, how 
much more true must it be where the people them- 
selves, by initiative, referendum, recall, or other kin- 
dred means, keep their own hands directly upon gov- 
ernmental processes. 

If the people are to rule in person and not by rep- 
resentatives, a proposition which, as applied to a 
great and populous state, is difficult, but perhaps not 
impossible, the people must be fit to rule; to be fit 
to rule they must not only be educated, but the great 
mass of them must be of good, moral character. 

A pure democracy cannot exist if its electorate be 
either ignorant or corrupt. If the fountain head be 
poisoned, the waters of the stream cannot be sweet. 

The question whether the American electorate is in 
all respects fit to assume the duties and responsibili- 
ties which must result from the new democracy which 
is at our doors is by no means free from doubt. We 
are much accustomed to boast of the intelligence and 
good morals of our people, but boasting proves 
nothing. 

Taking up the question whether the moral tone of 
the people is improving as the need for higher ideals 
increases, we shall find conditions not altogether re- 
assuring. In the first place, we find that the indus- 

6 



THE MODERN DEMOCRACY 7- 

trial revolution lias brought us not only the vast fac- 
tory and largely supplanted human labor with ma- 
chine labor, but has added very serious difficulties to 
the problem of maintaining, not to say elevating, the 
moral standards of the people. 

The great city has come, and come to stay, and it 
has brought its great problems with it, — ^problems 
which will call loudly and more loudly for solution 
as the years go by. They are the problems of the 
slum, the tenement house, the social evil, of child 
labor, of congested population and unsanitary living, 
of alluring vice in all its phases, and many others, 
all of which have greater or less bearing upon the 
physical and moral manhood and womanhood of the 
race. The sturdy farmer, who is daily breathing in 
health and strength under the open sky, surrounded 
by the inspiration of Nature's wonders, is giving way 
to the city dweller, the operative in the great shop, 
and the thousand and one stunted and narrow-chested 
workers in the city streets, who just manage to keep 
body and soul together, and go to bed at night hope- 
less and wearied, or try to drive away all thought of 
the morrow by forced and shameful merriment. The 
picture is not overdrawn, and it is not encouraging 
to one who is looking for improvement in the moral 
tone of the people at large. 

This is not to say that the moral fibre of the nation 
is weakening. Churches, schools and philanthropic 
societies of various kinds are working as never be- 
fore, but there is need of such work as never before. 
The political condition of most, if not all, of our great 
cities is distressing already under a representative 

7 



8 THE MODERN DEMOCRACY 

democracy; what will it be if we are to have direct 
democracies and immediate control by the electorate ? 
What will it be when the cleavage between great wealth 
and abject poverty becomes more pronounced? What 
will it be if class hatred grows more acute? What 
will it be if the urban nurseries of crime go unchecked 
and the professed criminal classes increase in the fu- 
ture as they have in the past ? Who can answer ? It 
is not pleasant to speak of these things, — indeed they 
are not much spoken of in our best society. People 
go to their receptions, their teas and their banquets, 
and talk of the weather, of the last opera, or the latest 
book. It is far more comfortable to ignore such dis- 
agreeable questions as those suggested. Yet the time 
has certainly come when they must be considered, 
and the wonder is that anyone could think of ignor- 
ing them. 

So far only the problems which are peculiar to the 
great city have been spoken of, but there are others 
which are present not only in the city but in the vil- 
lage and in the country as well, and they also threaten 
to affect the moral tone of our citizenship. 

The great increase of wealth and luxury which has 
come from the development of our wonderful natural 
resources has resulted in a perceptible lowering of 
ideals. Our forefathers struggled for very existence 
in the face of tremendous difficulties; they subdued 
forests, endured the privations of the frontiers, and in 
the midst of toil and privation laid the foundations 
of the state that was to be. Amid such labors and pri- 
vations it was natural that they should develop the 
sterner elements of character, the elements of forti- 

8 



THE MODERN DEMOCRACY 9 

tude, both physical and mental, of self-control, stead- 
fastness and probity of purpose. We who have entered 
into their labors and are reaping the results of their 
self-denial, either by way of making gain from vast 
business enterprises or dwelling in an atmosphere of 
ease or luxury which they made possible, are quite 
apt to have our thoughts directed to the material 
things, — the things which make life pleasant and en- 
joyable, to the neglect of the sterner virtues. 

It is not possible for one citizen, or for any group 
of citizens, to make any appreciable change in the 
material conditions of the age in which we live. We 
cannot go back to the days of our fathers if we 
would. ' ' The moving finger writes, and having writ, 
moves on," — not backward. The great city will be- 
come greater, the opportunities for the acquisition 
of wealth will not decrease but rather increase, the 
use of the conveniences and luxuries which modern 
life places within our reach will not cease, the temp- 
tation to live a life of ease and pleasure, regardless 
of the cry of the unfortunate and afflicted, will be 
just as strong. How are all these weakening tenden- 
cies to be met and overcome? How are we to make 
sure of that high grade of morality in our citizenship 
which will be necessary in such democracies as we 
shall have? 

This question is probably not capable of an authori- 
tative answer in a single word, nor will the attempt 
be made to give one, but the word which comes near- 
est to it is the word "Service." 

For centuries individualism has been the keynote 
of civilization, especially in this land which has 

9 



10 THE MODERN DEMOCRACY 

boasted so loudly of its freedom and equality. We 
have gloried in the idea that every man was the mas- 
ter of his own destiny and must fight his battle alone ; 
we have seen the struggle for wealth and social dis- 
tinction, — nay, even for the necessities of life become 
fiercer and fiercer, and we have condoned the ruth- 
less cruelty and selfishness of it all on the ground that 
all citizens have equal opportunities and that the tri- 
umph of the strong and the trampling down of the 
weak is but the working of Nature's immutable and 
righteous law. 

But the consciousness that man cannot live for him- 
self alone has come at least; the public conscience 
is awake; we now, for the first time, realize faintly 
and imperfectly the marvelous significance of the 
parable of the good Samaritan. We are learning who 
are our neighbors and we are realizing that an in- 
jury to ''one of the least of these" is an injury to 
society as a whole. 

Thousands of men and women with the spirit of the 
good Samaritan in their hearts are hearing the call, — 
men and women who could, if they chose, be clothed 
in purple and fine linen, and fare sumptuously every 
day. But they have chosen the better part. Com- 
paratively speaking their work has but just begun, 
and yet there are results to show. The slum is yield- 
ing to the settlement. The haunts of vice in the great 
cities are still practically untouched, but there is 
handwriting on the wall, and the waves of an 
awakened public sentiment are rising with ominous 
strength. Everywhere earnest men and women are 
banding together and devising ways and means, 

10 



THE MODERN DEMOCRACY 11 

either by way of legislation or agitation, or both, by 
which moral standards shall be raised, the frightful 
injustice of modern life in the great cities shall be 
corrected, disease vanquished, vice made hateful and 
life made to hold forth its promise of hope and joy 
to the most unfortunate. 

The layman is springing to the aid of the priest 
and the preacher, not always using methods which the 
priest and the preacher approve, and not always rely- 
ing on orthodox theology, but still rendering great and 
undoubted service to the cause of good morals and 
good citizenship. He will not supplant the church, but 
he will be its efficient aid. He will not use so much 
the methods of prayer and praise ; these he will leave 
largely to the church, but he will use agitation and 
legislation : he will build, if it be possible to build, a 
system of law which shall assure justice to all, which 
shall, as far as may be, equalize opportunity, rid the 
city of the slum, protect childhood, stop the propaga- 
tion of defectives and criminals, and gradually elimi- 
nate poverty, disease, and crime. 

The vastness of this programme is only exceeded 
by the desirability of its realization. It has been 
said that these American commonwealths are too much 
given to legislation already, and the countless volumes 
of useless statutes now burdening the shelves of our 
law libraries are pointed to with derision as proof of 

the fact. 

There is too much of truth in the gibe to allow of 
its being turned aside without notice. We have had 
and are still having too much hasty and ill-digested 
legislation. It is natural that it should be so. New 

11 



12 THE MODERN DEMOCRACY 

states, filled with young and enterprising people, fac- 
ing new questions and charged with the duty of devel- 
oping untold natural resources, will necessarily adopt 
new and untried means of meeting difficulties. There 
are few conservatives in such communities; youth 
and inexperience know not fear and dread not nov- 
elty. Every man in a new community is apt to deem 
himself a fully equipped legislator, ready and able 
to take up the greatest questions of statecraft and 
settle them satisfactorily in a three months' legisla- 
tive session. In view of all the circumstances, the 
wonder is not that there has been so much useless leg- 
islation, but that there has been so little. The results 
prove not by any means that legislation is futile, but 
rather that it must be more scientific if the best results 
are to be reached. We are willing to admit that we 
ought to have experts for other governmental func- 
tions which require special qualifications, but we seem 
very slow to learn that law-making is the most diffi- 
cult science of all, because it requires not only the 
wisdom of the philosopher and student of history, 
but the foreknowledge of the seer. He who would 
make a new law in a yet untrodden field of legislation 
must have the ability to read the future as well as the 
past ; he must have prescience as well as experience. 
But we ought to be fair to the legislatures of the past, 
even though we feel obliged to be critical. Notwith- 
standing their blunders and the mass of hasty, crude, 
and of ttimes absurd legislation which they have piled 
upon our shelves, it would be untrue to say that they 
have accomplished no valuable results. Decry their 
ill-considered efforts as we may, we must admit that 

12 



THE MODERN DEMOCRACY 13 

there are two sides to the picture, after all. They 
have not been experts, but they have done much valu- 
able work, notwithstanding their inexpertness. Con- 
sider for a moment the matter of compensation for 
injuries received by workingmen in the course of their 
employment, and the compensation of their families 
in case of death resulting from such injuries. 

Prior to the development of the railroad, the mam- 
moth shop, and the infinite mechanical dangers to 
which the modern workman is momentarily subject, 
the common law had laid down a few simple princi- 
ples regulating the liability of the master in case of 
his negligent default resulting in injury to the serv- 
ant, and denying any liability in case the injury was 
caused by the negligence of a fellow servant, or in 
case contributory negligence or assumption of risk 
existed on the part of the employee. 

These principles were not seriously faulty, perhaps, 
when applied to the conditions of the time. Those 
were days when the workman knew his fellow servant, 
worked with hand tools or simple machinery, and ran 
comparatively small risk of injury. The personal 
injury action was one of the rarest actions upon the 
calendars of the courts. Gradually, very gradually, 
the great industrial revolution came upon us. The 
little body of workmen, all knowing each other and 
working within sight of each other with simple tools, 
by slow and almost imperceptible degrees became the 
army of employees working, perhaps, at great dis- 
tances from each other, and known by number rather 
than by name ; the small shop grew to be the enor- 
mous plant, covering acres; the simple machinery, 

13 



14 THE MODERN DEMOCRACY 

under easy control, became a mighty and complicated 
system of vast machines, driven by a power rivaling 
that of the thunderbolt itself ; and the lumbering stage 
coach gave way to the palatial railway train. During 
the same time, and by equally slow and imperceptible 
degrees, the occasional simple accident was replaced 
by daily and almost hourly accidents, amounting fre- 
quently to tragedies, and the victims of industrial 
accidents became a veritable army, marching with 
halting steps and dimming eyes to the great hereafter. 
Slowly and imperceptibly also personal injury actions 
increased in number until they began to clog the cal- 
endars of the trial courts. It was not the proper func- 
tion of the courts to change well established principles 
of law, and so the doctrines of fellow servant, con- 
tributory negligence, assumption of risk, and ordi- 
nary care continued to be applied as they were applied 
in the earlier and simpler days. The result was a 
really deplorable condition of things. The injured 
man or bereaved widow was generally poor and unable 
to employ an attorney in the ordinary way, and hence 
was generally obliged to pay the attorney by giving 
him a share (and sometimes a very large share) of 
the recovery, if a recovery was had. This system 
wrought harm in more ways than one : It distinctly 
lowered the tone of the bar by creating a class of 
attorneys who sought such business and became really 
fomenters of such litigation; the lawyer became a 
joint adventurer with the client, and his keen interest 
in the result dulled his conscience and tempted him 
to overlook perjury, if not to actively encourage it. 
On the other hand, juries well knew that the recovery 

14 



THE MODERN DEMOCRACY 15 

would have to be divided with the lawyer, and thus 
often rendered excessive verdicts in order that the in- 
jured party might have adequate compensation after 
the lawyer's share had been taken. Thus the eco- 
nomic waste became enormous. The employer, after 
contesting the case through all the courts, paid an 
exorbitant sum if defeated, of which the injured per- 
son received only a fraction, but he also paid a con- 
siderable sum to his own lawyer, even if successful, 
of which, of course, the injured person received noth- 
ing. One could hardly imagine a greater economic 
waste than this. A system which spends many dollars 
in the effort to ascertain whether one dollar should 
be paid by one citizen to another can scarcely be con- 
sidered a desirable system. But a still more unfor- 
tunate result of the situation was the bad feeling 
which it encouraged between employee and employer, 
and the distrust with which the employee, defeated 
perhaps by one of the common-law defenses before 
mentioned, began to regard the courts. The employer 
was charged with heartlessness and greed, the courts 
with dishonesty and corruption, and the litigant fre- 
quently met the supposed combination between capi- 
tal, on the one hand, and courts which rigidly enforced 
the technical rules of archaic law, on the other, with 
flat perjury. Class hatred, distrust of the courts and 
the law, wholesale perjury, and enormous economic 
waste — these were the inevitable and lamentable re- 
sults of the legal proceeding known as the personal 
injury action. Here the eommon law was surely break- 
ing down. 

Nothing short of legislation novel in its character 

15 



16 THE MODERN DEMOCRACY 

could meet these grave questions, and that legislation 
has finally come in many of our states, and will un- 
questionably follow in all. In most of the states where 
this legislation has been attempted, two definite 
results have been aimed at: first, to reduce to the 
minimum the number of injuries by rigid inspection 
of all manufacturing establishments, by the enforced 
introduction of every practicable safeguard against 
accident or disease; and, second, to provide in some 
form for the automatic adjustment of claims for all 
industrial accidents on a fair and equitable basis, so 
that every injured employee (not wilfully negligent) 
should be assured of a reasonable indemnity, without 
delay and without expense, the method of payment 
being so arranged that the consuming public should 
ultimately bear the burden. 

The first of these aims was relatively easy of accom- 
plishment, but the second has been fraught with much 
difficulty by reason of the restraints imposed upon 
legislation by the terms of our written constitutions. 
While it would not be accurate to say that the prob- 
lems have been fully solved, it may be said with confi- 
dence that the legislation already secured has been 
substantially successful and that the results make 
certain ultimate extinction of the personal injury 
action between employer and employee, and a great 
reduction in the number of industrial accidents. 

These things have been accomplished by legislators 
who are not experts, who have been forced to act with 
little help from scientific investigation or research, 
and who have left their regular occupations for a few 
weeks to struggle with and attempt to satisfactorily 

16 



THE MODERN DEMOCRACY 17 

solve some of tlie gravest questions which have ever 
confronted the human family. 

In other fields, where modern civilization has pro- 
duced evil conditions with which the common law has 
been unable to successfully cope, legislation has made 
fairly satisfactory efforts to meet the new problems. 
Witness the sanitary inspection laws, the tenement 
house laws, the laws preventing the employment of 
children in life-destroying occupations, the laws regu- 
lating the service given to the public by public utility 
corporations, and many other laws which can not here 
be mentioned. 

Who shall say, in the face of these achievements, 
imperfect though they may be, that legislation is 
futile, or that the legislators of the past have done 
little but cumber the statute books with useless laws ? 
Rather we should say that in scientific and well con- 
sidered legislation lies the great hope of the future. 
The ever-increasing problems arising from our com- 
plex community life will have to be met unless we are 
ready to admit our incapacity and are content to fol- 
low the civilizations of the past into well merited 
decadence and oblivion. 

And so it seems as certain as any future event can 
be that we are entering on a period of great legisla- 
tive activity, when remedies will be proposed for all 
our ills, both real and fancied. It may be at once 
admitted that legislation can not remedy every wrong, 
nor make the nation virtuous and moral ; but still it 
is undoubtedly true that legislation can exert a pro- 
found influence on the morals of a people by elimi- 
nating as far as possible the material conditions which 

1-2 17 



18 THE MODERN DEMOCRACY 

make for misery and crime and b_y creating and fos- 
tering those conditions wliicli make for happiness and 
right living. 

Vice will find little room for growth in a commu- 
nity where prevail living wages, healthful homes, 
equal opportunities, innocent amusements for young 
and old, and social justice; where the slum, the bawdy 
house, and the indecent show do not exist. 

Now, if these conditions are to be brought about or 
hastened by legislation, and if the people themselves 
by means of the initiative and referendum are to take 
a controlling or even an important part in such legis- 
lation, the necessity of a highly intelligent as well as 
a moral electorate is very evident. 

Not only shall we require the services of the skilled 
investigator and philosopher in the preparation of 
the new laws ; not only shall we require the legisla- 
tive expert in our national and state legislatures ; but, 
above all, we shall require an educated electorate — • 
an electorate capable of appreciating the nature of 
the problems presented, and sufficiently acquainted 
with present conditions, both material and legal, to 
be able to judge of the wisdom of the proposed legis- 
lation, and vote intelligently thereon. 

This does not mean that all citizens must become 
lawyers, but it does mean that the study of the law 
should no longer be left to the lawyers alone ; it does 
mean that the law should cease to be regarded as a 
sort of black art, whose unaccountable results only the 
initiated can understand, but as a true science of 
which every educated person should have at least a 
general knowledge. 

18 



THE MODERN DEMOCRACY 19 

It is as impracticable for all of us to be thoroughly 
educated lawyers as it is for all of us to be thoroughly 
educated engineers, physicians, or political econo- 
mists; yet it is very certain that educated men and 
women are rapidly coming to be sufficiently familiar 
with the basic principles of engineering, health, and 
political economy so that they are able to compre- 
hend the expert discussion of questions in either 
science, and pass intelligent judgment thereon. 

It would not be correct to say that they are experts 
themselves, but rather that they are becoming highly 
intelligent jurors, fitted to take intelligent cognizance 
of questions discussed by the experts. 

This result has been reached rather by the general 
dissemination of books and periodicals treating of 
such subjects in familiar language than by systematic 
study in any institution of learning. 

There has doubtless been much less of this sort of 
education in the law than in either of the other 
sciences mentioned. It is true that there are some 
legal periodicals which have a field larger than the 
legal profession, and there are some recently estab- 
lished magazines which are making an earnest appeal 
to educated men and women of all classes, with a view 
of bringing together all such people in the intelli- 
gent study and appreciation of legal problems. The 
modern legal text-book, however, is not an inviting 
object to the most intelligent layman. In most of 
them, philosophic discussion of legal principles has 
ceased, and they have become simply more or less 
perfect guides to that "myriad of precedent, that wil- 
derness of single instances" known as the reports. 

19 



20 THE MODERN DEMOCRACY 

They are most valuable to the practicing lawyer, but 
are hardly more inviting to the layman than a dinner 
of husks set before a hungry man. 

It is confidently believed that there is a well defined 
place for a work which shall cover the field of exist- 
ing law comprehensively, concisely, and accurately, 
and which shall not consist of lifeless rules fortified 
by multitudinous citations, but which shall be a read- 
able and accurate commentary upon the existing law, 
couched in language which may be easily understood 
by layman as well as lawyer — a work which will be 
a welcome addition to every private library, and 
which may be consulted with pleasure as well as profit 
by every intelligent citizen who desires to know the 
condition of the law upon any subject. 

It is thought that the present work fulfills this 
idea ; it is hoped that it will take its place as a lumi- 
nous and complete commentary upon the existing 
law ; it is hoped also that it will assist in solving the 
great problems of government under the direct con- 
trol of the electorate, by materially hastening the day 
when the layman as well as the lawyer will not only 
have knowledge of the general principles of the law, 
but understand the reasons behind the principles as 
well, and thus be able to vote intelligently when the 
question of a substantial change in the existing law 
is submitted to the electorate, and discharge under- 
standingly the many onerous and exacting duties 
which will inevitably fall upon the citizen of the 
Democracy of the future. 



20 



